FERS Disability Retirement: To Resign or Not to Resign

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By on April 16, 2019 in Retirement with 0 Comments

Yes and no check boxes on paper under the words 'quit job?' with the yes box checked

Is it more difficult to win a Federal Disability Retirement case after a Federal or Postal employee becomes separated from Federal Service? Is separation from Federal Service a “game changer” when filing for Federal Disability Retirement benefits, and is there a “proper” way to separate that enhances one’s chances at getting an OPM approval as opposed to a “harmful” manner?

Life-impacting decisions are often made upon spur-of-the-moment steps which subsequently have consequences felt upon post-separation causes, and as the Bard of Avon stated in Act II, Scene 3 of Romeo and Juliet, “Wise and slow; they stumble that run fast.”

The argument that OPM often employs is essentially the following: The Federal Agency was never given an opportunity to see whether an accommodation or reassignment was possible, or not, and therefore one of the critical elements in proving eligibility for Federal Disability Retirement benefits cannot be met or established.

The counter argument to meet such a contention can include a variety among a spectrum of factual and legal rebuttals, but essentially comes down to: Proof by a preponderance of the evidence must show that a Federal or Postal employee, during the tenure of his or her employment with the Federal Agency or the Postal Service, must show that he or she cannot/could not perform one or more of the essential elements of one’s Federal or Postal job, or any similar job, and could not be accommodated or reassigned to a job at the same pay or grade; the medical condition is such that, no matter what the accommodation would have been or a potential reassignment might have offered, the Federal Disability Retirement applicant could not have performed the essential elements of his or her position, or any similar position.

Thus, in the end, it all comes back to the foundation of the case: The medical documentation. 

Post-separation filing of a Federal Disability Retirement application can present some unique problems. How one was separated can make a difference, of course.

The “Bruner Presumption”

There is a fine line between that which triggers the “Bruner Presumption” and that which precludes the application of it.

In a Federal Disability Retirement application, it is well-established law that an employee’s removal – when clearly stated in either (A) the proposal for removal or (B) in the finalized decision to remove or (C) in both or either — for his or her medical inability to perform the essential functions of the job or position (and the language can be flexible, including “removal for medical reasons” or “preventing performance for medical reasons”, etc.) constitutes prima facie evidence that the Federal or Postal employee is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998). Thus, the burden-shifting legal trigger is unequivocally invoked with an explicit clarity of acceptable language.

What has come to be known as the “Bruner Presumption” is thus a helpful legal tool that creates a presumption of eligibility for Federal Disability Retirement benefits — but be careful not to overly rely upon the law, lest you underwhelm OPM with lackluster medical documentation, leading to a denial of benefits. Proof of one’s medical conditions and their impact upon one’s capacity to perform the essential elements of one’s job are still necessary and required, even with the legal mechanism and advantage of the Bruner Presumption.

But what about removals which do not “explicitly” state the obvious?

Of course, “the law” always has some room for expansion and logical extension, and in subsequent cases, the U.S. Merit Systems Protection Board went further and held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical [or other] documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).

In other words, the cases have allowed for the lack of explicitly-stated removal actions to expand and include inferential, implicitly-stated actions to “trigger” the Bruner Presumption.

Additional Considerations under the “Bruner Presumption”

Further, the case of Angel v. OPM, Docket #CH-844E-14-0283-I-1, decided on April 15, 2015, established additional considerations concerning the Bruner Presumption.

In that case, the agency had stated that it could not permanently accommodate the employee; that the agency could not identify a suitable position for reassignment; and additionally, the Appellant testified that she had been “notified” that she would be removed from her position “for her inability to report to duty on a full-time basis”. Such evidence — with neither an explicit nor implicit acknowledgment by either the Agency or the Applicant that removal was based upon medical reasons — nevertheless was sufficient to invoke the Bruner Presumption.

As the Full MSPB Board observed (back when there was an actual quorum on the panel), the Hearing Judge “appropriately analyzed the record evidence and found no evidence that the appellant was separated for reasons other than the reduction in her schedule, which was attributable” to her medical conditions.

In other words, there was no evidence not to invoke the Bruner Presumption — a “double-negative” resulting in a positive conclusion — which is a far cry from the original application of the Bruner Presumption where explicit language was required in a removal based upon his or her medical inability to perform one’s job.

What About Resignation?

Can resignation trigger the Bruner Presumption?

Many Federal employees resign out of necessity — whether because there seems to be no point in staying on; because the Agency or the Postal Service has already issued a proposed removal or initiated an adverse action and the individual doesn’t want the “taint” of a termination; the need to move away back to a support system of family in order to take care of one’s health; or, perhaps because of the overwhelming stresses felt at a time when one’s deteriorating health, the pressures of work and the responsibilities demanded makes one believe that there is no other choice but to resign — whatever the reasons, a resignation is submitted and the Federal Agency or the Postal Service quickly processes it and issues an SF 50 or PS Form 52, establishing an irreversible separation from Federal Service.

Then what?

To begin with, if a medical condition was the primary basis for a Federal or Postal employee’s inability to continue in one’s job, that employee has up until 1 year from the date of such separation to file for Federal Disability Retirement benefits.

Are there unique post-separation issues that become problematic in proving a Federal Disability Retirement case? Of course, and the U.S. Office of Personnel Management is more than eager to point them out to the applicant who is unaware of the legal issues surrounding such an application.

Cases such as the U.S. Court of Appeals Case of Reilly v. Office of Personnel Management, 571 F.3d 1372, 1382 (Fed. Cir. 2009) should be carefully consulted, where the Court stated that “post separation medical evidence” which can establish that “proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period” can be used, and recognition that the field of “forensic medicine abounds with examples of subsequent medical examinations relevant to a prior condition.” Linking post-separation medical evidence to pre-separation causes becomes crucial in such a scenario, and careful consideration must be given in preparing an effective Federal Disability Retirement application.

Can resignation trigger the Bruner Presumption? That depends upon how much weight you put upon the Bruner Presumption itself.

Remember that the Bruner Presumption is merely a legal mechanism which invokes a “presumption of eligibility” — but that presumption must still be based upon qualitative medical evidence establishing meeting the legal criteria for Federal Disability Retirement benefits.

What does this mean? Take the following hypothetical: A Federal agency removes an individual for his medical inability to perform his job. He receives no treatment for his medical condition, and there is no documentation supporting his medical disabilities.

Would the Bruner Presumption be triggered? Yes. Would he be eligible for Federal Disability Retirement benefits? Likely, not.

So, what “good” is the Bruner Presumption? It is essentially a legal mechanism which weights a greater likelihood for an approval from the U.S. Office of Personnel Management and, if necessary, before an Administrative Judge at the U.S. Merit Systems Protection Board.

Can Resignation Trigger the “Bruner Presumption?”

Back to the original question: Can resignation trigger the Bruner Presumption?

Given the right circumstances, certainly a powerful argument can be made in favor of it, putting together the underlying rationale from the compendium of cases cited above — of an Agency’s acknowledgement of a Federal employee’s medical conditions; an inability on the part of the Agency to accommodate the employee’s medical conditions; emails and other correspondence showing that the best that an Agency can do is to allow for extended LWOP; then, resignation based upon his or her medical inability to perform the job.

Sometimes, the argument itself is a strong-enough basis; to put forward the idea that the Bruner Presumption should apply because of the circumstances surrounding the resignation is as strong as the trigger itself.

Resignation from a career and a well-paying job often comes about because of a desperation of last options closing upon alternatives no longer thought available. Whether because there is no choice but to resign because of the overwhelming stresses involved, or because there is a belief that the status quo is intolerable, counsel and guidance from an attorney who specializes in Federal Disability Retirement Law should be a given.

The question of resignation in relation to filing for Federal Disability Retirement intertwines — at a minimum — multiple and complex considerations. After the fact (after a Federal or Postal employee has resigned), there is often a rush to gather information supporting one’s Federal Disability Retirement, to create what the Reilly opinion pointed out — of creating the necessary nexus between “proximity in time, lay testimony, or some other evidence” which provides “the requisite link to the relevant period”.

While regrets may abound after a resignation, such regrets can become compounded if the proper foundation is not prepared for an effective Federal Disability Retirement application. To avoid this, consult with an experienced attorney who specializes in Federal Disability Retirement Law, lest Shakespeare’s admonition becomes true, to act “wise and slow; they stumble that run fast.”

© 2019 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.

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About the Author

Attorney Robert R. McGill specializes in federal disability retirement cases helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Attorney blog. 

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